Justice Ginsburg's inexplicable first two pages

Sandy Levinson

I will leave it to my betters to offer far more learned commentary than I on the implications of Hobby Lobby (though I suspect that, as in so many other instances, we won't know for many years of its actual importance:  remember Lopez?).  All I want to say is that I found the beginning of Justice Ginsburg's otherwise able dissent to be absolutely inexplicable.  Reading Justice Alito's opinion, I was impressed by how it adopted the rhetoric of quasi-minimalism:  i.e., closely held corporations, they objected only to four among a bunch of contraceptive methods, etc.  If the Court overreached, it was in deciding the case without remanding it for a full hearing on whether there really and truly is a less-restrictive-alternative other than the government's paying the money (which is disingenuous in the extreme, given that there is no chance whatsoever that Congress would pass an appropriation to cover contraception).  But Ginsburg violated the first rule of tactical dissents:  Do not cry "The British are coming"" or "The sky is falling" unless in fact the British are coming or the sky is falling.  She could so easily have conceded, thinking of future cases, that the decision was, in its own way, a modest one, but even the modest version was a mistake in its analysis of RFRA.

I would be extremely interested, when the papers are open after I'm gone, if the other dissenters pushed back on the extremity of the first couple of pages or if they a) agreed that that was the proper tone to adopt or b) felt they simply couldn't take on the (self-appointed?) leader of the "liberal bloc."  I think that Ginsburg has publicly spoken of her admiration for Justice Brandeis.  Perhaps she should reread Alex Bickel's Unpunblished Opinions of Justice Brandeis, which included some suppressed dissents on the ground that it would be better to pretend agreement and then, at a later case, argue that the precedent was in fact a narrow one rather than to ring the alarm and thus concede the merits of a later argument about its breadth.  I wonder, for example, if Justice Scalia would change some of his rhetoric in Lawrence and Windsor about the logic of those opinions requiring same-sex marriage.  He was right, of course, but was he well-advised to say it?  I suspect that his comments have been cited with frequency by judges ruling in favor of same-sex marriage.

One other point:  The Court has literally no idea what to do with the concept "religion," other than to suggest that it is fundamentally impermeable to standard-form rational analysis.  "Because this is the way I feel" seems to be a conclusive argument in the religions realm  (except where drugs are concerned).  I presume that secular conscience will never be similarly protected, though the Court does not explain why, unless it is because of a kind of brute textual positivism drawn from the "free exercise of religion" clause of the Religious Freedom Restoration Act.  That may be correct, just as we're stuck with the stupidity of January 20 as Inauguration Day because of the 20th Amendment.  In any event, those of us unhappy with the decision should perhaps blame Congress for passing RFRA (which I supported) and RLUPA than the Court for trying to give content to the rather extreme language of the statutes.

UPDATE:  A very sophisticated friend has suggested that another explanation for the tone of Ginsburg's dissent is that it was actually responding to a penultimate version that, perhaps, had not yet gotten Kennedy's vote.  That version might well have been more extreme (not limiting the analysis to closely held corporations, for example, or emphasizing that religious objections to vaccinations will basically not be honored, etc.).  But the actual Opinion of the Court simply didn't merit the kind of language Ginsburg uses at the beginning, and those of us who are on her side of the debate would have been better served with a more modulated dissent.  Now what will she say in the future if there are indeed five votes for "stronger" accommodationism?

FURTHER UPDATE:  As one of the discussants below suggests, perhaps Ginsburg (justly) feels that she was taken to the cleaners by the too, too clever Chief Justice on NAMUNDO, but the point is that she went along with that opinion and what she later discovered was its dreadful language.  I'm not suggesting that she should have signed Alito's opinion, which I wouldn't have signed either.  The disagreement is whether it can accurately be described as the sky falling.  What will she say the next time if the sky really does fall?.  She ought to be able to say that the majority was lying through its teeth when it promised that the decision was temperate, but she has given up that rhetoric by refusing to take seriously the language actually used in the opinion.  The opening of her dissent is the equivalent of the letters that I'm sure all of us have received, even if from groups on the opposite side of the spectrum, that suggest that a piece of relatively mainstream legislation is the beginning of the end (any gun control means the confiscation of all weapons, any attempt to get control over entitlements, given the greater percentage of geezers like myself, means the end of social security, and so on).  It's all too effective strategy for fund-raising, but it makes legislation and compromise near impossible.       


Posted 5:16 PM by Sandy Levinson [link]